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HomeMy WebLinkAbout2013-1446.Koroscil-Union.20-07-06 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-1446, 2013-1574, 2013-1696 UNION#2013-0999-0049, 2013-0999-0063, 2013-0999-0069 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Koroscil-Union) Union - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Reva Devins Arbitrator FOR THE UNION Richard Blair Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING June 18, 2020 - 2 - Decision [1] These grievances are part of a series regarding the operation of the Transition Exit Initiative, (“TEI”), under Appendix 46 of the Collective Agreement. The parties agreed that the current matters should be determined in accordance with Article 22.16 of the Collective Agreement. [2] There are five grievances under consideration, filed by employees in various positions with the Ministry of the Solicitor General and the Ministry of Children, Community and Social Services (“MCCSS”). [3] The facts in this matter are not disputed and follow the same pattern as in a number of previous grievances. The Grievors all had significant years of service and were approaching retirement. They requested enhanced severance benefits under TEI and although the Employer considered their requests, it did not approve them. [4] As argued in earlier cases, the Union alleges that the Employer failed to properly process and administer the requests. Specifically, the Union submits that the Employer fettered its discretion by relying on a narrow set of considerations to the exclusion of other relevant factors. [5] The Employer maintains that this is the same argument that has been advanced and dismissed in earlier cases. In its submission, the Board has already determined that the Employer is entitled to exercise its discretion in the manner currently disputed by the Union. - 3 - Agreed Statement of Facts 1. A number of employees in various positions employed by the Ministry of the Solicitor General (SolGen) and the Ministry of Children, Community and Social Services (MCCSS) (the “Ministries”) working in a number of institutions/workplaces applied for TEI between January 2013 to December 2018 (the “TEI Applications”). 2. There were five (5) individual applicants: SolGen Daniel Koroscil, Fire Protection Advisor JoAnn Kropf-Hedley, Fire Services Advisor 1 Jeff Post, Fire Services Investigator 1 MCCSS Sherril Louttit, Office Administration Group 8 Krista Rohrbach, Probation Officer 2 3. The Ministry did not approve any of the TEI Applications filed by the above noted. 4. The Union filed grievances between May 2014 and February 2015 inclusive on behalf of the above-noted employees whose TEI applications were not granted (the “TEI Grievances”). 5. For the purposes of these grievances, the Employer does not dispute that the requirements of paragraph 2(i) of Appendix 46 were met. This is without prejudice to other matters. 6. It would be the Ministries’ evidence that it did not grant the above-noted TEI applications for the following reasons: At the time of the TEI Applications and the TEI Grievances, the Ministry had no intention of reducing the number of employees or positions in the impacted workplaces and the exit of the above noted applicants would not have supported the transformation of the Ontario Public Service. The Union does not have evidence to the contrary. 7. Each of the grievors retired after their TEI application was filed and remained pending. SolGen: a. Daniel Koroscil applied for TEI on August 18, 2014 and retired on January 1, 2016. It would be the Ministry’s evidence that the position of Fire Protection Advisor (Position #00034290) at the Frankford District Office was filled on February 15, 2015 and continues to be required. No persons in the position of Fire Protection Advisor received a TEI. The union does not have evidence to the contrary. - 4 - b. JoAnn Kropf-Hedley applied for TEI on April 1, 2014 and retired on April 9, 2015. It would be the Ministry’s evidence that the position of Field Officer (Position #00136492) at the Cobourg Field Office was filled on December 1, 2015 and continues to be required. The union does not have evidence to the contrary. Although there were two Transition Exit Initiatives granted to Field Officers in the Office of the Fire Marshall and Emergency Management, those applications were approved in 2013, prior to Ms. Kropf-Hedley`s application. c. Jeff Post applied for TEI on June 13, 2014 and retired on December 1, 2015. It would be the Ministry’s evidence that the position of Fire Investigator (Position #00035038) at the Office of the Fire Marshall was filled on September 15, 2015 and continues to be required. No persons in the position of Fire Investigator received a TEI. The union does not have evidence to the contrary. MCCSS: d. Sherril Louttit applied for TEI on June 12, 2014 and retired on February 28, 2015. It would be the Ministry’s evidence that the position of Administrative Support (Position # 00021017) at the North Bay Probation Office was filled on February 28, 2015 and continues to be required. The union does not have evidence to the contrary. e. Krista Rohrbach applied for TEI on June 20, 2014 and retired on January 31, 2015. It would be the Ministry’s evidence that the position of Probation Officer (Position # 00056668) at the Gloucester Probation Office was filled on March 16, 2015 and continues to be required. Although at least one Probation Officer in the Gloucester Probation Office received a TEI, that application was granted prior to Ms. Rorbach making her application. The union does not have evidence to the contrary. Appendix 46 [6] The relevant provisions of Appendix 46 are set out below. I have included the initial provision and noted where it was subsequently revised: 1. All regular, regular part-time and flexible part-time employees will be eligible to apply to a Transition Exit Initiative (TEI). - 5 - 2. An employee may request in writing voluntary exit from employment with the OPS under the TEI, which request may be approved by the Employer in its sole discretion. The Employee’s request will be submitted to the Corporate Employer. The Employer’s approval shall be based on the following considerations: i. At the time that an employee TEI request is being considered, the Employer has plans to reduce positions in the OPSEU bargaining unit; and ii. The Employer has determined in its discretion that the employee’s exit from employment supports the transformation of the Ontario Public Service. iii. The Employer will consider whether employees are on the TEI lists when making its decisions [added to revised Memorandum of Agreement, October 30, 2015]. 3. If there is more than one employee eligible to exit under the TEI, the determination of who will exit under the TEI shall be based on seniority. [or] If there is more than one employee eligible to exit under the TEI within the same workplace, the determination of who will exit under the TEI shall be based on seniority [revised, effective October 30, 2015]. - 6 - Analysis [7] I have now issued several decisions on the scope of the Employer’s discretion to allow or deny a request for TEI: Koeslag, issued January 12, 2016, Vadera, June 28, 2018, Kimmel, November 29, 2018, Anich, August 9, 2019, Klonowski et al, November 7, 2019 and Fairley et al., February 12, 2020, Alcock et al., March 2, 2020, Bowman et al., March 9, 2020 and Cullen et al., June 15, 2020. [8] The Union and the Employer agreed that the current grievances are not materially different than those that have been previously dismissed. Nonetheless, the Union continues to advance the argument that the TEI requests were not fairly processed or administered. Specifically, that the Employer erred in only considering the narrow issue of whether the position was still required and whether the existing complement could be reduced by eliminating the exiting employee’s position. [9] Counsel suggested that these grievances offer an especially good example of why the Union’s view should prevail. It maintained that the facts in these cases demonstrate that Appendix 46 contemplates consideration of a much broader range of factors when the Employer determines whether an employee’s exit would assist in the transformation of the OPS. [10] The Union highlighted the Employer’s approval of earlier TEI requests in some of the grievor’s workplaces, which it argued stood in stark contrast with the Employer’s failure to approve subsequent requests. It appeared to the Grievors that transformation of the OPS was still ongoing when they submitted their applications for TEI. Furthermore, they were of the view that there was a continued need to reduce the size of the OPS on a province wide and bargaining unit wide - 7 - basis. In these circumstances, the Union maintains that the Grievors’ requests should have been granted. [11] The Union acknowledged that timing of a request to exit under the TEI might affect the outcome. Counsel further clarified that the Union was not suggesting that there was anything unfair about granting any of the earlier requests submitted by other employees before the Grievors submitted their applications. Rather, it was suggested that these facts serve to highlight the overall unfairness of the process: whether an individual’s request for TEI is granted can literally change from day to day. Counsel argued that the TEI has become no more than a human resources tool to manage complement rather than, as intended, a way for the Employer to implement largescale transformation and manage an overall reduction of the OPS. [12] Having considered the arguments, I understand the Grievors’ disappointment and frustration. However, I have heard this argument on several occasions and concluded that the Employer is entitled to exercise its discretion in the manner now challenged. As I stated in Klonowski et al, supra: … Appendix 46 confers a broad discretion on the Employer to determine whether granting a request for TEI would support its vision of transformation of the OPS: Koeslag, supra. While recognising that there may have been a number of different approaches that the Employer could have adopted with respect to transformation of the public service, it remains in the Employer’s sole discretion to decide whether an ‘employee’s exit from employment supports transf ormation’ and, in so doing, to determine which factors are relevant to the exercise of that discretion: Vadera, supra. - 8 - [13] I am not persuaded that there is any meaningful distinction in the facts presented in these grievances. The Union focussed on earlier approvals of TEI requests in the offices of some of the Grievors. It is noteworthy that none of the Grievors submitted their request for TEI until after the earlier requests had already been approved. [14] The ongoing operation of the TEI clearly anticipates that not all applications will be granted. Requests made at different times might yield different results based on a number of factors, including how transformation has unfolded to date, what further reduction of the OPS was feasible and consideration of operational needs at the time an application is made. [15] The parties have specifically agreed that seniority will be the determinative factor when more than one employee is eligible to exit under the TEI. The language used in paragraph 3 to provide this entitlement clearly assumes that the Employer might not approve all requests. It also confirms that where opportunities to exit under the TEI are limited, preference will go to the most senior eligible employee. However, in order to be considered eligible, an employee must submit an application. While I know it would be extremely disheartening to realize colleagues departed the OPS under the TEI and yet you were unable to access the same opportunity, that disappointment does not arise from the Employer’s improper conduct. It reflects unfortunate timing and the inevitable effect of limited resources. [16] There was no suggestion by the Union that any of the TEI applications in this instance were denied as a result of bad faith or discrimination, or that other, more - 9 - junior employees in the same workplace were granted TEI at the expense of the Grievors. [17] Having considered the evidence and the submissions before me, I can find no basis to distinguish these grievances from those that I have already dismissed. Therefore, in keeping with my earlier awards, I find that the Employer properly exercised its discretion and the grievances are dismissed. Dated at Toronto, Ontario this 6th day of July, 2020. “Reva Devins” Reva Devins, Arbitrator